76021 Advanced Remedies

This subject builds on the core areas of private law, in particular torts, contracts and equity, and statutory actions such as intellectual property and trade practices.

Where a choice of remedies is available to a plaintiff, the lawyer should be able to advise or argue which is better. A choice of remedies is often available, both within an area (e.g. torts) and across different areas, e.g. in tort, contract and statute. Each remedy has advantages and disadvantages, but these vary from case to case. Cases have suggested that a plaintiff who sued for breach of fiduciary duty may have been better off suing in tort, and that a plaintiff who sued for an account of profits for a trade mark infringement may have been better off suing for compensatory damages.

The common law (as modified by statute) provides monetary damages for tortious, contractual, statutory and equitable wrongs (and in some instances even where no wrong is established, for example where a contract is ineffective). Damages may reflect the plaintiff's loss, or the defendant's gain, or may be lower or higher than either. Equity and statute provide non-monetary remedies (e.g. injunctions, declarations, specific performance) which operate in addition or in place of a monetary remedy. Equity and statute also provide interlocutory remedies, to protect a plaintiff's interests pending trial.

The subject also explores the theories underlying the various remedies and the tensions between them. Should the law distinguish between personal and commercial interests? Should contractual remedies protect the sanctity of contract or yield to commercial realities? Should the public interest be relevant to purely private disputes? Given our system of law relies so much on certainty and precedent, are the discretions of equity justified? Should the civil law ever punish? Are deterrence and punishment mutually exclusive concepts?